2021 (4) TMI 1074 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - pre-existing dispute between the parties prior to the issuance of the alleged demand notice - HELD THAT - There has been no admission of operational debt by the respondent. In fact, there has been a dispute regarding the quality of the goods being supplied by the applicant. Further the corporate debtor on 20.05.2019 vide an email already intimated the applicant regarding the substandard quality of the goods supplied by them and the losses that were incurred by the corporate debtor on using the same supplied materials. There was existence of dispute much prior to the issuance of notice under Section 8 of the Code. Respondent has raised dispute with sufficient particulars. The amount of claim raised by the applicant clearly falls within the ambit of disputed claim. The claim of dispute suggests the need of elaborate investigation. In the facts it is reiterated that existence of genuine dispute in the present case cannot be ruled out. As per Section 9 (5) (ii) (d) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility - Petition is thus rejected.

Summary

Issues:
- Application under section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process.
- Dispute regarding outstanding payment and quality of goods supplied.
- Consideration of existence of genuine dispute prior to the issuance of demand notice.
- Interpretation of the definition of "dispute" as per the Code.
- Rejection of the application based on the presence of a pre-existing dispute.

Analysis:
The case involved an application under section 9 of the Insolvency and Bankruptcy Code, 2016, filed by an operational creditor seeking the initiation of Corporate Insolvency Resolution Process against the respondent company, claimed to be the corporate debtor. The applicant alleged an outstanding amount along with interest, stating repeated demands for payment had been made. The respondent, on the other hand, raised a pre-existing dispute regarding the quality of goods supplied, asserting losses incurred due to substandard materials. The respondent contended that the machinery suffered technical problems and monetary losses as a result of the goods supplied by the applicant.

The Tribunal examined the definition of "dispute" as per the Code, citing the judgment in Mobilox Innovative Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd., emphasizing the need to differentiate between a genuine dispute and a spurious defense. It was noted that the respondent had raised a dispute with specific details prior to the issuance of the demand notice. The Tribunal highlighted that there was no admission of operational debt by the respondent, and the claim made by the applicant fell within the ambit of a disputed claim, requiring further investigation.

Based on the evidence presented and the interpretation of the Code, the Tribunal concluded that a genuine dispute existed between the parties before the demand notice was issued. As per Section 9(5)(ii)(d) of the Code, the adjudicating authority was required to reject the application if a notice of dispute had been received by the operational creditor. Consequently, the petition was rejected, emphasizing that the observations made in the order should not be construed as a judgment on the merits of the controversy, preserving the rights of the applicants to seek recourse in other forums without prejudice.